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Intellectual Property Rights and the Artist- Part 2.

Updated: Apr 28, 2023

Disclaimer: Intellectual property (a.k.a- I.P.) is a complex and evolving area (that even some lawyers don't understand very well). This post is written from my perspective as someone who previously worked in the I.P., art rights industry. I am not a lawyer- so it should not be construed as legal advice. For specific questions you should always consult an attorney who is qualified in this area of law.

For artists, there are generally two sides to the intellectual property coin- creation and use. My first post about intellectual property (I.P) discussed "creation" and explained what I.P. rights are (you can read Part 1 here) so in this post I'll be focusing on "use".

Use is the area of I.P I think is most misunderstood. It's not a coincidence that it is also the area where artists can get in trouble if they're unaware of what constitutes infringement on someone else's rights. So whether you're a professional or a hobby artist, it's really important to understand the basics.

Lets go over some situations that seem to come up frequently:

Situation 1: Using someone else's photo as inspiration/source material

I'll use painting as an example- When you create a painting using someone else's photo as the reference, the photographer has intellectual property rights to that source material. They need to grant their permission to use the photo as the inspiration for your painting, otherwise it's infringement.

In this scenario there are certain things you shouldn't (and should) do with that painting:

  • Showing, Displaying & Social Media Posting: Most shows have rules against entering work that uses someone else's photo as the reference (even if the photographer has given their permission). Whether or not it is in a show, displaying a piece using someone else's photo is still infringement. Showing the painting on social media could get your post removed, or your account suspended. If you've taken a workshop or a class with an artist, most instructors like when their students post their work online, but it's good practice to tag or identify the instructor in the post.

  • Selling Work: Unless you have permission, selling work that was made using someone else's photo as the inspiration is definitively something you can't do. It's unethical and a violation of that artist's rights.

  • Gifting Artwork: Giving away artwork that's based on another artist's photo shouldn't be done unless three conditions are met. First, have the permission of the artist whose source material was used. Second, note somewhere on the artwork that the piece was made using another artist's source material. Third, make it clear to the recipient of the art that the piece was made using another artists source material, and therefore cannot ever be sold. This may sound like a lot, but the fact is- once you give a piece of art away, you don't have control over what happens to it. Making it clear that it's not your sole work is the ethical and responsible way to go.

Situation 2: Using Celebrity Photos

Although this falls under the category of using someone else's photo I thought I'd specifically address this topic because it's so prevalent. Using a photo of a celebrity as the inspiration for a piece of art violates the rights of the artist who took the photo (as explained above) but now it also adds into the mix the complex issues of likeness and publicity rights. Celebrities (and in fact all people) have rights over their likeness and its use. Again, even if the art is being created for personal use and not being sold, technically you're infringing on a multitude of rights.

Although "fan art" is often welcomed by celebrities, and social media posts showing fan art typically aren't removed- technically they can be removed by either the celebrity or the photographer who's picture the artwork is based on. Selling celebrity artwork can bring a greater chance that the rights holder(s) will take action because that crosses over from simply being fan art and into the realm of business.

Situation 3: Recreating Artwork From a Demo or Tutorial

Artwork created while following an instructor is a derivative piece (this term is explained in part 1) and therefore falls under the instructing artist's intellectual property rights. In this situation, permission for a student to recreate the instructing artist's work for their own educational purposes is implicit, but other uses (such as the ones outlined below) are not.

  • Selling or Gifting Artwork: Selling art created by following a demo or tutorial should never be done, it's both a rights infringement, and an unethical practice. Gifting the art should also not be done unless the three conditions I mentioned above (in situation 1) are met.

  • Posting/Showing/Displaying: Work created from demos or tutorials shouldn't be exhibited (unless it's with the instructing artists permission). Most instructors are o.k. with student's posting on social media, but the instructing artist should be tagged, and it should be clear the artwork was made by following their demo/tutorial.

Situation 4: Making Art/Products That Include Licensed Characters Or Images

This is a frequently encountered, often misunderstood scenario for artists. To make matters worse, there are some gray areas to contend with, which often need legal help to navigate.

You may also be wondering what "licensed" means. Licensing is when an intellectual property holder gives permission for their art to be used in some way. If you have a social media account, you've granted a license (whether you know it or not) to the social media company, allowing them to display the content (video, images, text, and audio) you post. Licensing is everywhere- any product featuring your favorite sports team, those famous animated princesses, whatever superheros come to mind, as well as your favorite childhood toys/games becoming movies, are all examples of licensed property.

Muralists, Cake Artists, Illustrators, Graphic Designers/Artists, and Fabric Artists are often asked to create work using licensed characters or property. Painters, sculptures, and collage artists, whose work with nostalgia or still-life subject matter may also encounter licensed imagery and characters as part of their work.

In general artists, especially those being paid to create an object or artwork, should avoid using licensed imagery, unless they have permission. As a former art licensing professional, I can tell you this is an area of intellectual property where rights are protected and any form of infringement is carefully watched and swiftly acted upon.

The only exception for using someone else's I.P. is appropriation/fair use, which are exemptions carved out of copyright/intellectual property laws allowing artists, educators, and reporters, to use or reinterpret, copyrighted materials. Andy Warhol's Soup Can work is a good example of appropriation. The branded image label and logo was not Warhol's intellectual property. His use was never challenged in court (although reportedly a lawyer representing the company was sent to see the debut show). Had the matter been challenged by the rights holder, a court could have decided the use and expression was different and unique enough to be allowable, or they could have decided it was infringement. Weird Al Yankovik is a musical example of fair use. Although the music and melody is recognizable as the original artists work, the lyrics and themes have been changed, making the new song a parody (rather than a copy) of the original.

Certain guidelines have to be met in order to claim appropriation/fair use, but this is often a gray area left to up to legal interpretation. So if you really want to venture into this realm, it's a good idea to contact a legal professional that specializes in this specific area of the law. Although Weird Al Yankovik's work is protected by Fair Use Doctrine, he reportedly does seek the permission and partnership of the original artist, which is a great way to go with anything having to do with someone else's intellectual property!

Situation 5: Public Vs. Private

Two questions I've frequently heard artists ask are: Can you take photos/make artwork of a house or a business? Can you take a photo/make artwork of people in public?

Generally speaking, the answer to the first question yes. Buildings are part of the public domain. In certain (and rare) situations a building's facade might be trademarked as being an integral part of a brand, but that's an exception not a rule.

People in public is a little more complicated. Depending on the situation, privacy rights could come into play. If you're taking pictures of a crowd of people in public, you don't need permission. When pictures (or other artwork) become more like portraits, i.e. they're closeup with clearly identifiable features, depending on the circumstances and the situation, likeness and privacy rights could come into play. Again, when in doubt it's always better to ask permission (or even better, get it in writing).

I hope these common and general examples of the "use" side of intellectual property were illuminating, and have you considering how this topic may impact your own practices and work. I can't stress enough that the internet isn't the best place to find information about this topic, so if you have specific questions, seek the help of a qualified professional.

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